In this months article, Patricia Rooney,  Partner in the Employment Team at Tughans, addresses a query regarding payment for employees returning early from sickness absence.

This month’s problem concerns:

“We have an employee who has been on long term sick leave and wishes to return to work. We are concerned about his fitness to return to normal duties and wish to delay their return.  Can we do this and, if so, do we need to pay them their normal salary. How do I handle it?”

I see that the employee has been absent on long term sick leave but you have not said whether he is in receipt of SSP only or occupational sick pay.  You may already have an Absence/Sickness Policy which sets out your practices in such circumstances – whether there is an entitlement to occupational sick pay.  Even if the Company has such a Policy, often such policies are silent on what happens when an employee wishes to return to work and the employer has concerns about his ability/fitness to undertake his normal duties.

As the employee is on long term sick leave, I am assuming that the employee has been providing fit notes/medical evidence covering his absence.  You may also have referred him for assessment to Occupational Health.  Whilst payment of SSP and/or occupational sick pay normally requires submission of fit notes certifying the employee’s incapacity, often there is no contractual requirement for an employee to prove his fitness before returning to employment.  You will be aware, whilst commonly mentioned, there is no such thing as a signing off note from a GP.

Therefore, in these particular circumstances I suggest you examine the most recent medical evidence/OH report available concerning the employee’s condition, reason for the absence and his likely date of return.  If the most recent evidence (not just the fit note which would have expired) confirms the employee is fit to return, the employee should be allowed to return.  In these circumstances, if you want him to stay at home I would suggest you have an obligation to pay the employee his wages, unless you have a contractual right not to do so.  Further, you should pay the employee his full salary during the time it takes you to obtain your own evidence to satisfy yourself as to this employee’s fitness.

If however, despite what the employee says about his willingness to return to work, the most recent medical evidence/OH report declares the employee unfit to return, you are not obliged to allow this employee to return to work.  You could ask him to remain at home until such time that you are satisfied that he is able to return updating medical evidence if needed. During this period the employee would be entitled to sick pay only.

You will see from the above that whether the employee is entitled to his salary or sick pay depends on the particular facts of the employee, the medical evidence available and the nature of his absence.  Therefore, I would suggest that each matter should be considered on a case by case basis.  Whilst some employers may have contractual provisions which cover these circumstances, you should be aware that requiring an employee to remain at home when the employee is fit and willing to work and most recent evidence confirms that, could amount to a breach of trust and confidence.

These are fact sensitive matters and therefore, you should consider each individual on his/her own personal circumstances.